Will Bush Really Leave the Presidency Weaker Than He Found It?
This passage from Jeffrey Rosen's interview with Jack Goldsmith captures a sentiment that seems to be emerging as the conventional wisdom about the Bush administration's efforts to aggrandize power:
But there's more to executive power than Article II authority. There is no question that the president's statutory powers have been vastly enhanced during the Bush administration (thanks to the Patriot Act, Military Commissions Act, Protect America Act, etc.) And those statutory authorities are not likely to be taken away anytime soon. So in that sense, Bush has greatly increased the power of future presidents.
Where I think Goldsmith (and many others) err is in assuming that the president could have secured this same statutory authority had he gone to Congress first. Implicit in this critique of the Bush administration is the idea that, in the immediate aftermath of 9/11, Congress would have given the president whatever authority he asked for, and that by waiting until years later--when his hand was forced by scandal and by adverse court rulings--the president was forced to settle for less.
But I don't think that's true at all. Though Congress was quite willing to make reasonable, incremental changes to existing statutes immediately after 9/11, there's no reason to think Bush could have pushed through wholesale changes to existing legal regimes. When asked to include the United States itself within the scope of the Authorization for Military Force (something that would have put things like the Jose Padilla detention and domestic spying on firmer legal footing), Congress pushed back and the language was dropped. When confronted with a number of problematic provisions in the original draft of the Patriot Act, Congress (including many Republicans) pushed back and made a number of significant amendments before passing the bill. And the Patriot Act, though it contains some moderately controversial provisions, is nowhere near as radical a statute as the Military Commissions Act or the Protect America Act, which were both passed many years later--one of them by a Democratic-controlled Congress.
In other words, it is somewhat ahistorical, I think, to claim that Bush needed only to ask Congress for the authority to do what he felt was necessary and Congress would have readily obliged. Had Bush gone to Congress in October of 2001 and asked for the authority to torture detainees, conduct warrantless surveillance of all international calls, and detain people indefinitely without process at Guantanamo Bay, I don't think he would have had much luck.
The perverse truth is that by engaging in these activities unilaterally (and in some cases illegally), the Bush admininistration was ultimately able to secure much greater statutory authority than it otherwise could have. By simply claiming this power for itself and acting accordingly, Bush created a situation where--in the wake of adverse court rulings--Congress was faced with the choice of stopping activities the Bush administration claimed had been crucial in preventing terror attacks (such as "enhanced interrogation," processless detention, and warrantless surveillance) or retroactively legalizing these activities. The political reality is that it's much easier for members of Congress to vote to deny authorization for new activities than it is for them to vote to stop activities that are already happening.
On top of that, the simple fact that the Bush administration had been engaged in these activities for years served to normalize such activities in the minds of many Americans and many politicians, a reality which helped make their eventual statutory ratification possible. Partisans feel a much greater need to vigorously defend actual administration programs--as opposed to hypothetical or proposed programs--and conversely, critics are more circumspect in attacking existing programs than mere proposals. By acting first and letting the chips fall where they may, the Bush administration was able to dramatically shift the baseline of the debate. Instead of a debate over how to tweak FISA, we found ourselves in a debate over whether FISA was unconstitutional and should be gutted completely. Instead of a debate over what detention conditions were adequate for detainees, we found ourselves in a debate over what forms of torture the CIA should be authorized to continue using against them.
There's little question that the Bush administration's aggressive and unilateral approach to executive power resulted in judicial decisions that undermined the theories of executive power on which it was relying. But these theories never really had much merit anyway. And whatever the president lost in the way of constitutional authority, he more than made up for in statutory authority. And statutory authority is much more solid. All and all, I think there's little question that Bush will leave future presidents with much more power than they otherwise would have had. I don't think that's a good thing, but it seems unquestionably true.
Though I haven't read it yet, this appears to be one of the central themes of Charlie Savage's new book.
Goldsmith says he remains convinced of the seriousness of the terrorist threat and the need to take aggressive action to combat it, but he believes, quoting his conservative Harvard Law colleague Charles Fried, that the Bush administration "badly overplayed a winning hand." In retrospect, Goldsmith told me, Bush "could have achieved all that he wanted to achieve, and put it on a firmer foundation, if he had been willing to reach out to other institutions of government." Instead, Goldsmith said, he weakened the presidency he was so determined to strengthen. "I don't think any president in the near future can have the same attitude toward executive power, because the other institutions of government won't allow it" he said softly. "The Bush administration has borrowed its power against future presidents."I've made this point myself from time to time, and there is certainly some truth to it. By insisting on unilaterally implementing policies that were at odds with existing statutes, the Bush administration was just asking for the judiciary to step in and issue opinions like Hamdan and Hamdi, which were devastating to the legal theories espoused by the likes John Yoo and David Addington. Those opinions would never have been necessary if the Bush administration had been a little more cautious in its claims of power and had sought statutory authorization for its policies. So in the constitutional/article II sense, Goldsmith is right: the president's ability to act unilaterally, based on his own claims to constitutional authority, has been diminished.
But there's more to executive power than Article II authority. There is no question that the president's statutory powers have been vastly enhanced during the Bush administration (thanks to the Patriot Act, Military Commissions Act, Protect America Act, etc.) And those statutory authorities are not likely to be taken away anytime soon. So in that sense, Bush has greatly increased the power of future presidents.
Where I think Goldsmith (and many others) err is in assuming that the president could have secured this same statutory authority had he gone to Congress first. Implicit in this critique of the Bush administration is the idea that, in the immediate aftermath of 9/11, Congress would have given the president whatever authority he asked for, and that by waiting until years later--when his hand was forced by scandal and by adverse court rulings--the president was forced to settle for less.
But I don't think that's true at all. Though Congress was quite willing to make reasonable, incremental changes to existing statutes immediately after 9/11, there's no reason to think Bush could have pushed through wholesale changes to existing legal regimes. When asked to include the United States itself within the scope of the Authorization for Military Force (something that would have put things like the Jose Padilla detention and domestic spying on firmer legal footing), Congress pushed back and the language was dropped. When confronted with a number of problematic provisions in the original draft of the Patriot Act, Congress (including many Republicans) pushed back and made a number of significant amendments before passing the bill. And the Patriot Act, though it contains some moderately controversial provisions, is nowhere near as radical a statute as the Military Commissions Act or the Protect America Act, which were both passed many years later--one of them by a Democratic-controlled Congress.
In other words, it is somewhat ahistorical, I think, to claim that Bush needed only to ask Congress for the authority to do what he felt was necessary and Congress would have readily obliged. Had Bush gone to Congress in October of 2001 and asked for the authority to torture detainees, conduct warrantless surveillance of all international calls, and detain people indefinitely without process at Guantanamo Bay, I don't think he would have had much luck.
The perverse truth is that by engaging in these activities unilaterally (and in some cases illegally), the Bush admininistration was ultimately able to secure much greater statutory authority than it otherwise could have. By simply claiming this power for itself and acting accordingly, Bush created a situation where--in the wake of adverse court rulings--Congress was faced with the choice of stopping activities the Bush administration claimed had been crucial in preventing terror attacks (such as "enhanced interrogation," processless detention, and warrantless surveillance) or retroactively legalizing these activities. The political reality is that it's much easier for members of Congress to vote to deny authorization for new activities than it is for them to vote to stop activities that are already happening.
On top of that, the simple fact that the Bush administration had been engaged in these activities for years served to normalize such activities in the minds of many Americans and many politicians, a reality which helped make their eventual statutory ratification possible. Partisans feel a much greater need to vigorously defend actual administration programs--as opposed to hypothetical or proposed programs--and conversely, critics are more circumspect in attacking existing programs than mere proposals. By acting first and letting the chips fall where they may, the Bush administration was able to dramatically shift the baseline of the debate. Instead of a debate over how to tweak FISA, we found ourselves in a debate over whether FISA was unconstitutional and should be gutted completely. Instead of a debate over what detention conditions were adequate for detainees, we found ourselves in a debate over what forms of torture the CIA should be authorized to continue using against them.
There's little question that the Bush administration's aggressive and unilateral approach to executive power resulted in judicial decisions that undermined the theories of executive power on which it was relying. But these theories never really had much merit anyway. And whatever the president lost in the way of constitutional authority, he more than made up for in statutory authority. And statutory authority is much more solid. All and all, I think there's little question that Bush will leave future presidents with much more power than they otherwise would have had. I don't think that's a good thing, but it seems unquestionably true.
Though I haven't read it yet, this appears to be one of the central themes of Charlie Savage's new book.
posted by A.L. at 11:30 PM
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